Summary
In Spencer v. Branham, 109 Cal. 336, [41 P. 1095], the court says: "If the motion had been made, and the court continued the hearing for argument or further evidence, it would not have lost jurisdiction, for in such a case the application would have been made in time."
Summary of this case from Townsend v. ParkerOpinion
Department Two
Appeal from a judgment of the Superior Court of Lassen County and from an order refusing a new trial. W. T. Masten, Judge.
COUNSEL:
A motion to set aside a default judgment in a justice court must be made within ten days after the entry of judgment. (Code Civ. Proc., sec. 859; Weimmer v. Sutherland , 74 Cal. 341, 344; Jones v. Justice's Court , 97 Cal. 523, 525.) A motion cannot be made by simply filing a statement of it in writing. It is necessary that the court's attention be called to it, and the court moved to grant it. (Wallace v. Lewis, 9 Mont. 399; Code Civ. Proc., sec. 1003; People v. Ah Sam , 41 Cal. 645; 15 Am. & Eng. Ency. of Law, 887; Allen v. Meyer , 73 N.Y. 1; Emeric v. Alvarado , 64 Cal. 529; 3 Chitty's Practice, 573-75.)
Spencer & Raker, and F. C. Spencer, for Appellant.
Goodwin & Goodwin, for Respondent.
It is not essential that a motion be made viva voce. It is sufficient if the attention of the court is called to it by some movement of counsel. (Code Civ. Proc., sec. 1003; Wallace v. Lewis, 9 Mont. 399.)
JUDGES: Temple, J. McFarland, J., and Henshaw, J., concurred.
OPINION
TEMPLE, Judge
[41 P. 1096] Proceeding for a writ of prohibition. April 20, 1893, plaintiff obtained a judgment by default before the respondent, who is a justice of the peace. On the twenty-seventh day of the same month, Leonard, against whom the judgment was obtained, filed with the justice an application to have the default and judgment vacated on the ground that it was obtained through his inadvertence, surprise, and excusable neglect. Several affidavits were filed with the written application, and plaintiff was notified that the court would be asked to grant the relief on Monday, May 1st, following. The motion was signed "Goodwin & Dodge, Attorneys for Defendant. By J. E. Pardee, at the request of W. N. Goodwin."
On Monday, May 1st, the parties appeared before the justice, and the plaintiff objected to the motion upon the ground that Pardee had no authority to act for Leonard. The objections were overruled. The further proceedings had in the justice court are stated in the docket of the justice of the peace as follows: "On motion of defendant, hearing and making of motion continued until Tuesday, the 2d, at 10 o'clock a. m. Motion not having been made."
The parties again appeared before the justice on Tuesday, and the docket shows the following: "Counsel for defendant ask leave to withdraw motion and papers filed April 27th on application to set aside judgment by default without prejudice to the hearing of any motion that may have been filed subsequent to the 27th day of April, 1893. Counsel for plaintiff object to withdrawal of the motion on the ground that the only power and jurisdiction of the court is to disregard the motion entirely, and the court has no power to allow the motion to be withdrawn without prejudice, in that the ten days within which this court can act has passed, no motion or application being made within that time to open the default." The objections were overruled, but nothing further was done on that day.
On the next day, at the request of the attorney for the defendant in that action, the justice prepared and served the attorney for the plaintiff the following:
" In Justice's Court, No. 1 Township, Lassen County, California .
" E. V. Spencer, Plaintiff, v. "J. G. Leonard, Defendant .
" Defendant in the above-entitled cause having, on Monday, the 1st day of May, 1893, presented to me a written request to be relieved from, and have an order entered setting aside the judgment by default entered against him on the 20th day of April, 1893, through his mistake, inadvertence, surprise, and excusable neglect, together with affidavits in support of the same, you are notified that I will take up the matter to be disposed of on Monday, the 8th day of May, 1893, at 10 o'clock a. m. of that day, and that you have until that time to prepare and file counter-affidavits.
May 3, 1893.
James Branham,
" Justice of the Peace, No. 1 Township.
" [Indorsed]: Notice of time of hearing application to set aside judgment by default."
Plaintiff then commenced this proceeding, and now appeals from the judgment denying his remedy and from an order refusing a new trial.
Plaintiff claims that the justice had no power to grant the relief demanded because the application was not made within ten days from the entry of judgment as required by section 859 of the Code of Civil Procedure.
As judgment was entered on the 20th, and the last day of April was Sunday, defendant had until May 1st within which to make his application. As he withdrew the proceedings inaugurated on the 27th, he must rely upon the motion filed on the 1st of May, the hearing of which was set for the eighth day of May.
The written motion was handed to the justice on Monday evening, and the justice was told to file it. He was not asked to act upon it, and the counsel for the opposite party were not notified of any hearing and were not present.
Indeed respondent's counsel seem to admit that the paper was handed to the justice at a time when no action could be expected. They say that a justice court is wherever you find the justice, and that "attorneys, like other human beings, are not above the customs of a country, and it is at least awkward, if not downright impoliteness, to stop the deal in a game of frog and distract the attention of the 'swampers' from the contents of the 'widow' by injecting into the proceedings, 'If your honor please, as attorney representing the defendant in Doe v. Roe, I respectfully move, etc!' How much better to respect the rights of all, and when the court is sipping the fruits of a well-earned victory (his own or someone else's), quietly hand him the paper with a statement of the contents and a request that it be filed, and if the 'victories' have not been so frequent but that he knows what he is asked for and proceeds thereafter to act upon the request, it would seem that as much had been accomplished as could have been by the most formal viva voce motion."
Although not able to determine from the language of the learned counsel what his honor was then doing, I understand the statement as an admission that he was not then engaged in judicial work and was possibly not in a condition to do so. At all events no present action was asked, and none could have been had in the absence of the opposite party without notice to him.
The question then is, when a motion must be made upon notice within a given period, can a party extend his own time by filing a written motion within the period and giving notice of a hearing of the motion at a time after the period has expired? To ask the question is to answer it. The application for relief must be by motion, [41 P. 1097] and "making and not filing a written application for such rule or order is not sufficient. The attention of the court must be called to it, and the court moved to grant it." (People v. Ah Sam , 41 Cal. 645.) Here, although the attention of the court may have been called to it, no present action was requested.
If the motion had been made, had the court continued the hearing for argument or for further evidence, it would not have lost jurisdiction, for in such case the application would have been made in time.
The judgment and order are reversed.